DOCKET NO. 15-56527 (Case No. 15-56679 consolidated with Case No. 15-56527) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT =========================================================== ALBERT ALTO, et al. Plaintiffs/Appellants v. SALLY JEWEL, et al. Defendants/Appellees. =========================================================== Appeal from the District Court Order and Judgment United States District Court, Southern District, California Honorable Cynthia Bashant, Judge, Case No. 11-cv-02276-BAS-BLM APPELLANTS’ CONSOLIDATED REPLY BRIEF Tracy L. Emblem CSBN 145484 P.O. Box 300764 Escondido, CA 92030 Telephone: (760) 300-5837 [email protected]Law Offices of Thor O. Emblem CSBN 141880 500 La Terraza Blvd., Suite 150 Escondido, CA 92025 Telephone: (760) 738-9301 [email protected]Attorneys for Plaintiffs/Appellants Case: 15-56527, 04/28/2016, ID: 9957581, DktEntry: 38-1, Page 1 of 39
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DOCKET NO. 15-56527(Case No. 15-56679 consolidated with Case No. 15-56527)
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
===========================================================ALBERT ALTO, et al.
Plaintiffs/Appellants
v.
SALLY JEWEL, et al.
Defendants/Appellees.
===========================================================Appeal from the District Court Order and Judgment
United States District Court, Southern District, CaliforniaHonorable Cynthia Bashant, Judge, Case No. 11-cv-02276-BAS-BLM
APPELLANTS’ CONSOLIDATED REPLY BRIEF
Tracy L. Emblem CSBN 145484P.O. Box 300764Escondido, CA 92030Telephone: (760) [email protected]
Law Offices of Thor O. Emblem CSBN 141880500 La Terraza Blvd., Suite 150Escondido, CA 92025Telephone: (760) [email protected]
I. RES JUDICATA AND CLAIM PRECLUSION PRINCIPLES APPLY. 1
a. No public policy is implicated under the facts of 2this case.
b. The general rules of statutory construction apply. 6
c. The plain meaning rule applies. 6
d. Respondents’ interpretation of the phrase “final and 7conclusive” as meaning only “final” is flawed.
e. Application of res judicata and claim preclusion principles 8in this case involves applying the express language of §76.14 and the conjunctive phrase “final and conclusive.”
f. Appellants’ interpretation of the “final and conclusive” 9provision does not read §48.14(d) out of the 1960 regulations.
g. A “reconsideration rule” years later should not apply 10where the regulation’s plain language states “conclusive.”
h. Res judicata and claim preclusion principles barred 12Echo Hawk from reviewing the allegedly “new” evidence to support the same stale 1995 claim.
II. ECHO HAWK’S DECISION THAT MARCUS ALTO, SR. WAS 15THE NON-INDIAN ADOPTED SON OF JOSE AND MARIA ALTO REWROTE THE ALTO FAMILY’S NATIVE AMERICANHERITAGE, WAS CONTRARY TO AGENCY AND PUBLIC RECORDS, AND WAS THEREFORE ARBITRARY.
b. The Frank Alto 1910 letter was not corroborative 21evidence that Marcus was adopted.
c. Both Echo Hawk and the district court erred in the their 22legal analysis of the belated hearsay witness statements.
d. Echo Hawk committed plain error in determining a 28different Jose Alto was Marcus’s father and that Marcus was the non-Indian “adopted” son of Jose and Maria Alto.
Marsh v. Oregon Natural Resources Council 15-16490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)
Miller v. County of Santa Cruz 11, 1239 F. 3d 1030 (9th Cir. 1994)
Morton v. Mancari 5417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974)
Motor Vehicle Mfrs. Assn. of United States, Inc. 28v. State Farm Mut. Automobile Ins. Co.463 US 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)
Owens v. Kaiser Found. Health Plan, Inc. 14244 F.3d 708 (9th Cir. 2001)
Perrin v. United States 6444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)
Plaine v. McCabe 2797 F.2d 713 (9th Cir. 1986)
Rabkin v. Oregon Health Sciences Univ. 28350 F.3d 967 (9th Cir. 2003)
Richardson v. Perales 26402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) Santa Clara Pueblo v. Martinez 5436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency 14322 F.3d 1064 (9th Cir. 2003)
At the time appellants argued Alto v. Black (Case No. 12-56145) and in1
the summary judgment motion proceedings, appellants were unaware of the fineprint in the Agency Memorandum stating the Band adopted Part 76 by vote of itsGeneral Council on July 13, 1986. [ER 541] In the summary and supplementaryinformation published in the Federal Register, no mention is made of this fact. [See ER 245, 246] The issue of which regulation applies is a legal determination.
2
McCabe, 797 F.2d 713, 719 (9th Cir. 1986) citing United States v. Utah Mining
Constr. Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966).
a. No public policy is implicated under the facts of this case.
Respondents argue that appellants’ opening brief largely fails to
address 25 C.F.R. §48.14(d). (RB p. 26, 29.) There is no question that Part 48 was
incorporated into the Band’s constitution. [ER 542] Respondents argue that the
“adoption” of Part 76 regulations was to produce a “one-time” snapshot of the
Band’s membership. (RB p. 37.) However, the record establishes that Part 48 had
“previously been redesignated from 25 CFR Part 48 at 47 FR 13327 on March 30,
1982.” [ER 245, 537] The redesignation of Part 48 occurred prior to the docket
80A settlement. [ER 537] The regulation is titled “Part 76-Enrollment of Indians
of the San Pasqual Band of Mission Indians.” [ER 246; emphasis added] It is
undisputed that the Band adopted Part 76 on July 13, 1986 [ER 539, 541] before
the agency revised Part 76 to bring the membership current as of April 27, 1985.1
The Federal Register supports this fact: “The constitution provided
that membership in the Band would be in accordance with the regulations
contained in this Part 76.” [ER 245, emphasis added] The Band had already
adopted Part 76 as its enrollment regulation to replace Part 48 when the Bureau
later revised Part 76 to bring current the roll for the Docket 80A judgment.
Indeed, the record states “[t]he regulations contained in Part 76 originally
provided procedures for the preparation of a membership roll of the San Pasqual
Band as of January 1, 1959.” [ER 538] As publicly stated when the Bureau
amended Part 76: “Revision to Part 76 is necessary to prepare a membership roll
of the San Pasqual Band as of April 27, 1985, both as a result of the fact that the
primary purpose of the regulations as originally promulgated was to prepare a roll
as of January 1, 1959, and as a result of the time that has elapsed since the rule
was promulgated.” [ER 245, 539] The record also demonstrates:
The constitution and bylaws for the San Pasqual Band refers to theregulations contained in Part 76, formerly Part 48. A draft, datedJuly 2, 1986, of the proposed revision to the regulations contained inPart 76 was, therefore, submitted to the Band for review. At a regularmeeting of the General Council of the San Pasqual Band of MissionIndians held on July 13, 1986, at which a quorum was present, thedraft of the revision was adopted by a vote of 33 ‘for’ and 3 ‘against.’ With one exception the document which follows is the same draft,dated July 2, 1986, of the revision.
See Alto v. Black (Case No. 12-56145). [Docket Entry 8, p. 19, fn 3 cont.]4
The Court may take judicial notice of prior court records in this action. Evid. R.201; United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 971F.2d 244, 248 (9th Cir. 1992).
In Santa Clara, supra, 436 U.S. 49, the legal challenge involved children5
applicants born of female tribal members. This case is distinguishable because allrights to membership in appellants’ case were determined in a “final andconclusive” agency decision as agreed to when the prior decision was litigated.
5
(Case No. 12-56145) that Part 76 is “no longer federal law.” Merely because the4
federal agency, on June 3, 1996, repealed Part 76, and the regulation is no longer
federal law, does not establish that the Band took official tribal action to repeal or
withdraw Part 76. Repeals by implication are not favored. Morton v. Mancari,
417 U.S. 535, 549, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). Part 76 continues to
remain the operative regulation. The Band’s constitution was NOT amended.
Rather, Part 48 was redesignated as Part 76, and the Band adopted Part 76.
Importantly, under both §48.11 and §76.14, the Band indisputably
gave the federal government authority to make “final and conclusive” decisions
about the Band’s membership. Alto v. Black, 738 F.3d 1111, 1116 (2013). Based
on the circumstances of this case, no public policy is involved in applying res
judicata and claim preclusion principles to “final and conclusive” membership
decisions. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56
e. Application of res judicata and claim preclusion principles in this case involves applying the express language of §76.14 and the conjunctive phrase “final and conclusive.”
Respondents argue that common-law res judicata and collateral
estoppel principles do not apply to administrative decisions with the same rigidity
as their judicial counterpart. (See RB p. 39) This case is different because the
Band, in adopting the regulation, agreed to be bound by a “final and conclusive”
decision. As argued “final” has a distinct meaning for agency exhaustion and
APA review, which meaning must be deemed separate and distinct from the word
“conclusive.” The phrase is worded as a conjunctive phrase. A conjunctive phrase
serves to connect elements of meaning and construction within the sentence.
Therefore, the words “final” and “conclusive” are not ambiguous; the words must
be considered together.
Several dictionaries define the word “conclusive” similar to the
Black’s Law dictionary (online version 2nd ed) definition of “conclusive” as
“putting an end to inquiry, final, decisive.” Some examples are: “Putting an end6
to debate or question....” ; “serving to settle or decide a question” ; “serving to7 8
review a prior “final and conclusive” decision, would render the word
“conclusive” pointless, and leave appellants open to repetitive litigation based on
the same stale claims, but with some alleged “new” fact, depending on which three
tribal members were elected to the Band’s five member enrollment committee.
Conversely, applying res judicata and claim preclusion principles to
the facts of this case–only to those tribal members who have previously had their
membership eligibility adjudicated in a “final and conclusive” decision by the
Assistant Secretary, with the right to APA review, would allow the Band to correct
its roll as to those tribal members enrolled who did NOT have their claims
conclusively adjudicated. Thus, appellants’ interpretation of Part 76 is reasonable
because it would give the “final and conclusive” phrase its full meaning while it
would still allow the Band’s enrollment committee the right to correct its roll
subject to the Assistant Secretary’s approval on cases not previously adjudicated.
§76.4(b).
g. A “reconsideration rule” years later should not apply where the regulation’s plain language unequivocallycontemplates the decision is “final and conclusive.”
Respondents argue that §48.14(d) is a reconsideration rule that should
override the express language of the “final and conclusive” provision. (RB 31.)
Appellants disagree. Interpreting §48.14(d) or its counterpart, §76.4(b) in a broad
II. ECHO HAWK’S DECISION THAT MARCUS ALTO, SR.WAS THE NON-INDIAN ADOPTED SON OF JOSE ANDMARIA ALTO REWROTE THE ALTO FAMILY’SNATIVE AMERICAN HERITAGE, WAS CONTRARYTO AGENCY AND PUBLIC RECORDS, AND WASTHEREFORE ARBITRARY.
Respondents focus on a few facts by Echo Hawk without addressing
the entire record. (See RB p. 44.) The substantial evidence standard requires
review of the administrative record as a whole, weighing both the evidence that
supports the agency’s decision as well as evidence that detracts from it. De la
Fuente v. FDIC, 332 F.3d 1208, 1220 (9th Cir. 2003). The Supreme Court applies
the same principle. “Courts should not automatically defer to the agency’s express
reliance on an interest in finality without carefully reviewing the record and
satisfying themselves that the agency has made a reasoned decision based on its
evaluation of the significance — or lack of significance — of the new information.
A contrary approach would not simply render judicial review generally
meaningless, but would be contrary to the demand that courts ensure that agency
decisions are founded on a reasoned evaluation ‘of the relevant factors.’” Marsh v.
The Alto family cannot DNA test with tribal member descendants of12
“Sosten Alto” and “Frank Alto” because NO public records exist establishingcommon ancestry between Frank Alto, Sosten Alto, and Jose Alto, Marcus’ father. DNA testing would be futile. According to Frank Alto’s death record, hisdaughter, Connie Alto informant, states his parents are Juan Osuna and ErlendaRodreguez [ER 452] Sosten Alto’s death certificate, reported by his wife, PaulineAlto, states his parents are “unknown.” [ER 343]
21
b. The Frank Alto 1910 letter was not corroborative evidencethat Marcus was adopted.
If “Frank Alto” was Jose’s son, the Marcus Alto, Sr., descendants
were never told he was related to Jose and Maria Duro Alto and were not
acquainted with him. To this day, appellants have searched to locate public record
documents identifying Frank as Jose’s son. There are NO death, marriage, or12
baptismal records for Frank Alto showing his relationship to Jose Alto. The
agency has no California Judgment roll application that identifies Frank Alto as
the son of Jose Alto. As previously emphasized, not one of the belated witness
statements mention that Jose Also had a son named “Frank.”
Nonetheless, even favorably construing respondent’s claim that the
“Frank Alto” author is related to Jose Alto, the 1910 letter does NOT provide
corroboration that Frank was Jose’s son, nor evidence that Marcus was “adopted.”
The author does not state that he is the “son” of Jose Alto. It merely states “my
family names” are Duro and Alto. [ER 380, emphasis added] The author could be
Respondents argue that appellants’ other witness credibility attacks
such as age discrepancy, lack of foundation for familiar relationships, and
inaccurate information about a material fact such as Maria Alto’s address in the
early 30’s, are not relevant to the declarants’ statements that Marcus was “non-
Indian” and adopted. (RB p. 57-58.) Appellants disagree. If it is demonstrated
that the declarants’ statements’ lack foundation, are based on “common
knowledge,” or are otherwise factually inaccurate, it goes to the issue of bias,
reliability, and credibility of the witness’s statement and the issue of what
probative weight to give the evidence, if any. See, Calhoun v. Bailar, supra, 626
F.2d at 149.
d. Echo Hawk committed plain error in determining adifferent Jose Alto was Marcus’s father and that Marcuswas the non-Indian “adopted” son of Jose and Maria Alto.
An agency decision is arbitrary and capricious if, in reaching it, the
agency fails to consider all relevant facts or to articulate a satisfactory explanation
for the decision, including a rational connection between the facts found and the
choice made. Yerger v. Robertson, 981 F.2d 460, 463 (9th Cir. 1992); Motor
Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.,
463 US 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). “An abuse of discretion
is a plain error, discretion exercised to an end not justified by the evidence, a
interpretation of the agency record in relation to the choice made. (See RB p. 61-
62.) Indeed, in granting the preliminary injunction, Judge Gonzalez reasonably
found: “[t]his explanation...is conclusory and lacks any ‘rational connection’ to the
facts.” [ER 121]
A rational analysis of the facts in the 1907 baptismal record shows the
child’s sponsors as “Frank Alto” and “Letalia Duro” and the child’s father as “Jose
Alto.” Shipek’s affidavit states that “Alto” and “Duro” are San Pasqual Indian
names. [ER 261] The Band’s anthropology expert states that one sponsor, Letalia
Duro, was a “San Pasqual Indian.” [ER 301, fn. 113] Thus, Echo Hawk’s
conclusion finding the Jose Alto in the baptismal record was a different Jose Alto
was not rational. As the Regional Director logically concluded:
Assuming the baptism record is Mr. Alto’s, this would prove that heis the son of Jose Alto. On Maria Alto’s 1928 application, she listedJose Alto as 4/4 Digueno Indian from San Pasqual. Jose Alto waslisted on several San Pasqual census rolls, in particular the 1910Census Roll....If this were the case Mr. Alto would still be eligible tobe included on the San Pasqual membership roll as a descendant ofJose Alto.
[ER 267, emphasis added]
Echo Hawk’s decision to disenroll the Alto family and change their
Native American status to “non-Indian” was arbitrary and should be reversed.